IN THE CASE OF:	  
 
		BOARD DATE:	        23 October 2008

		DOCKET NUMBER:  AR20080009060 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a medical retirement.  In the alternative he requests that he be granted a Medical Evaluation Board (MEB) for the purpose of determining whether his Post Traumatic Stress Disorder (PTSD) caused him not to meet retention standards while he was on active duty followed by referral to an informal Physical Evaluation Board (PEB) for determination of whether his PTSD rendered him unfit for duty; thereafter, that he be medically retired based on his total disability to include his PTSD and previously rated right knee and right shoulder pain and his chronic low back pain; that his disability be rated at 
40 percent; that his retirement date be his date of separation; and that he receive back retirement pay from the date of his separation to the present.   

2.  The applicant states, in effect, that on 21 March 2005 he underwent an MEB wherein shoulder pain, knee pain, and chronic low back pain were determined to be conditions which caused him not to meet retention standards, that he agreed with the findings, and that his case was forwarded to a PEB.  On 13 April 2005, a PEB rated him at 10 percent for right knee and right shoulder pain and rated him at 10 percent for chronic low back pain without neurologic abnormality.  He contends that he agreed to this determination and because he was a reservist he opted for severance pay over retirement at age 60.  His case was finalized on 
28 April 2005 and he was released from active duty on 2 May 2005.  

3.  The applicant stated that on 11 April 2007 the Department of Veterans Affairs (DVA) granted him service-connection for PTSD (30 percent).  He requests that the DVA determination of 30 percent be applied to his case and that he be medically retired at 40 percent.
4.  The applicant points out that the Wounded Warrior Act has recently become law and that certain relevant provisions apply to the applicant (determinations of disability and requirements and limitations on determination).  He states: 

   “a.  Utilization of VA Schedule for Rating Disabilities [VASRD] in Determinations of Disability – 
   
   (1)  In making a determination of disability of a member of the armed
forces for purposes of this chapter, the Secretary concerned--

(a)  Shall, to the extent feasible, utilize the schedule for rating
disabilities in use by the Department of Veterans Affairs, including any applicable interpretation of the schedule by the United States Court of Appeals for Veterans Claims; and

   (b) Except as provided in paragraph (2), may not deviate from
the schedule or any such interpretation of the schedule.

   (2)  In making a determination described in paragraph (1), the Secretary
concerned may utilize in lieu of the schedule described in that paragraph such criteria as the Secretary of Defense and the Secretary of Veterans Affairs may jointly prescribe for purposes of this subsection if the utilization of such criteria will result in a determination of a greater percentage of disability than would be otherwise determined through the utilization of the schedule.
	
   b.  Consideration of All Medical Conditions – In making a determination of the rating of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned shall take into account all medical conditions, whether individually or collectively that render the member unfit to perform the duties of the member’s office, grade, rank, or rating.” 		

5.  The applicant states that this section requires the Army to use the VASRD and to consider all medical conditions which rendered him unfit.  He points out that the DVA determined that he was suffering from service-connected PTSD
(30 percent) and that under the Act the Army is bound by the DVA determination with respect to percentage of disability.  He states the only determination left to the Army is whether the PTSD was unfitting.  He claims that all evidence submitted to the DVA supported the conclusion that the PTSD was unfitting, that the submissions demonstrated that traumatic events occurred which legitimately formed the basis for a diagnosis of PTSD while he was serving at the World Trade Center and in Iraq, and that the PTSD, though undiagnosed, had a demonstrable impact upon him while on active duty.

6.  The applicant states that his agreement to the results of the PEB was not an informed decision as he was unaware that his disability was due in part to his PTSD.

7.  The applicant provides his MEB proceedings; PEB proceedings; a DVA Rating Decision, dated 11 April 2007; and documentation pertaining to his ongoing treatment for PTSD, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 1 December 1960.  Having prior inactive and active service, he enlisted in the Army National Guard on 13 August 2002.  He received his 20-year letter in July 2001.  The applicant was ordered to active duty on 2 January 2003 in support of Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom.  He served in Kuwait and Iraq from 3 April 2003 to 7 February 2004.   

3.  The applicant’s MEB Narrative Summary, dated 28 February 2005, states that his chief complaint was chronic right shoulder pain status-post rotator cuff repair with debridement of the biceps tendon, chronic left knee pain, and chronic low back pain.  This summary also states that the applicant’s present condition and current functional status is that he cannot perform the duties of his military occupational specialty secondary to his right shoulder pain, his left knee pain, and his chronic back pain.  Specifically, he is unable to run, jump, lift, and his lifting is restricted as well as his standing.  His P3 profile states these limitations.     
4.  On 21 March 2005, an MEB diagnosed the applicant with shoulder pain, knee pain, and chronic low back pain.  The MEB recommended referral to a PEB.  On 30 March 2005, the applicant agreed with the findings and recommendation.  

5.  On 13 April 2005, an informal PEB found the applicant physically unfit due to right knee pain and right shoulder pain status-post rotator cuff repair with debridement of biceps tendon in May 2004, without neurologic abnormality; right shoulder abduction 135 degrees; right knee flexion 100 degrees; and intermittent narcotic use.  Pain rated as slight/constant (VASRD Codes 5099/5003); and chronic low back pain without neurologic abnormality.  Thoracolumbar range of motion limited by pain, tender to palpation (VASRD Codes 5299/5237).  The PEB recommended a combined rating of 20 percent and that the applicant be separated with severance pay.  The DA Form 199 (Physical Evaluation Board (PEB) Proceedings) noted he might have had over 20 years of qualifying service for a Reserve retirement and that he had the option of accepting disability severance pay and forfeiting his Reserve retirement pay or that he might request transfer to inactive Reserve status and receive Reserve retired pay at age 60.  On an unknown date, the applicant concurred with the findings and recommendation and waived a formal hearing.

6.  On an unknown date, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB’s findings and recommendation.

7.  On 2 May 2005, the applicant was honorably discharged by reason of physical disability (20 percent) with severance pay in the amount of $86,889.60.  He had completed a total of 16 years, 11 months, and 12 days of creditable active service. 

8.  On 11 April 2007, the DVA granted service-connection for PTSD (30 percent).

9.  In the processing of this case, an advisory opinion was obtained from the Legal Advisor, USAPDA on 4 August 2008.  The opinion recommended no change to the applicant’s military record.  The opinion points out that the military disability system is a performance based system which compensates Soldiers for the loss of their military careers due to specific injuries and diseases that cause them to be unable to perform their assigned military duties.  The opinion states that even if diagnosed with PTSD before separation that would not mean that the applicant would be unfit for it.  When the applicant began his MEB processing, he filled out a DD Form 2807-1 (Report of Medical History).  On this form there were blocks relating to areas/concerns about physical and mental conditions that may have been bothering the applicant.  At block 17 there were nine questions about mental health.  The applicant only stated he was having trouble sleeping and had had a prior mental evaluation.  When questioned by the examining physician on these two points the applicant indicated that the sleep problems were related to his physical pain and the past exam related to his personality disorder.  There was no report of, or any complaint relating to, any other mental/psychiatric 
condition.  The physician’s final report on the applicant’s physical and mental status noted that his psychiatric condition was normal.  The applicant’s commander’s statement only related his shoulder and knee pain as hindering his performance.  There is no evidence in any document that indicates that the applicant was having psychiatric problems in 2005 that interfered with his ability to perform his military duties. 

10.  The opinion states that the fact the DVA subsequently diagnosed the applicant with PTSD and rated it is not any evidence of any error on the part of the Army two years earlier.  The PEB findings are supported by substantial evidence, the findings are not arbitrary or capricious, and there is no evidence of any violation of any statute, directive or regulation.  

11.  The advisory opinion was furnished to the applicant for his review and possible rebuttal.  On 25 August 2008, the applicant responded.  In summary, he stated that the issue before the Board is did he meet retention standards due to his PTSD while on active duty.  He states that it is irrelevant that he was unaware that he was having mental problems while on active duty, that no one is held to a standard of being able to self-diagnose mental illness, that the very notion that such a result is possible is absurd, and that beyond that it is well known that military personnel engage in significant self-denial that they are having emotional problems.  He states that it is unequivocally clear that he was in fact suffering PTSD while on active duty and that its genesis was his participation in the World Trade Center Recovery Operation.    

12.  The applicant points out that an October 2006 psychological evaluation concluded that the genesis of his PTSD was during active duty, that the DVA diagnosis of severe PTSD was grounded in his Iraq and World Trade Center experiences, and that the World Trade Center Medical Monitoring and Treatment Program concluded that his PTSD derived from his experiences while on active duty in the World Trade Center recovery.  He states that it is wholly reasonable to conclude as the DVA did that the PTSD was service-connected; grounded in the timing of the precipitating events it is equally reasonable for the Board or an MEB to conclude that while on active duty he did not meet retention standards.  He states that a missed diagnosis should not be the responsibility of the Soldier, that responsibility belongs to the Army.   

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states that there is no legal 
requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.   

14.  Title 38, U. S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

15.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

16.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were noted.  However, there is no evidence of record which shows he was diagnosed with PTSD prior to his discharge on 
2 May 2005.  More importantly there is no evidence to show that at any time prior to his separation he was unfit to perform his duties due to PTSD or any other mental condition.  The available evidence shows the applicant’s primary complaints were chronic right shoulder pain, chronic left knee pain, and chronic low back pain.  The MEB Narrative Summary indicates he could not perform his duties because of right shoulder pain, left knee pain, and chronic back pain and that he had a P3 profile which stated these limitations.  The advisory opinion indicates the applicant’s commander said he could not perform his duties because of his shoulder and knee pain.     

2.  Although the DVA granted service-connection for PTSD two years after the applicant’s discharge, there is no evidence to show he was having psychiatric problems in 2005 that interfered with his ability to perform his military duties.  

3.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability.

4.  There is no requirement to rate and the Wounded Warrior Act does not require the Army to rate a condition that is not unfitting.

5.  There is insufficient evidence to show the applicant’s PEB disability rating is incorrect or that his separation with a 20 percent disability rating was not in compliance with law and regulation.  Regrettably, there is no basis for granting the applicant’s requests 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  ___XX_____  ____XX____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ______XXXX________________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080009060



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ABCMR Record of Proceedings (cont)                                         AR20080009060



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